Little Fish Loses Big

Defenders of Wildlife, Forest Guardians and four other environmental organizations contended that the minnow, listed as endangered in 1994, was threatened by low stream flow in the Middle Rio Grande, a valley where human populations also vie for water resources. Though the minnow once ranged across New Mexico and Texas, now it can only be found along a 60-mile stretch of the Rio Grande south of Albuquerque. The environmentalists first brought suit over the minnow in 1999, claiming that the Bureau of Reclamation failed to consult with the Fish and Wildlife Service over affects of its activities, as required under the Endangered Species Act. The groups filed two amended lawsuits challenging biological opinions for the fish from 2001 and 2002, in their third complaint seeking emergency relief due to drought, which the federal district court granted. In 2003, while an appeal was pending, the agency issued a new opinion, this time consulting with the wildlife agency, which concluded that their actions would jeopardize the minnow. Later that year and in 2004, Congress attached a series of riders to bills declaring the 2003 biological opinion valid until 2013 and putting resources in the San Juan-Chama Project, which imports Colorado River water to the Rio Grande basin, out of the bureau’s reach. In 2005, the federal district court ruled that the environmental action could proceed despite the Congressional riders.The Denver-based 10th Circuit Court dismissed the environmentalists’ suit and remanded the case for the trial court to vacate its 2002 and 2005 decisions. The 2003 biological opinion created a new regulatory framework, wrote Judge Jerome Holmes, who was joined in his opinion by Judge Bobby Baldock. The lower court had no jurisdiction in its rulings, since the environmentalists never challenged the 2003 biological opinion. Passage of the Congressional riders in 2003 basically made this impossible. “The consultation process culminates in the issuance of a biological opinion,” Holmes wrote. Chief Judge Robert Henry dissented, saying the case was not moot and arguing that the bureau must consult with other agencies over the full scope of its actions. The bureau should abide by the plain language of the Act, Henry concluded.